Kunwar Awadhesh Pratap vs State of U.P. and Others

Order in Review Petition No. 323467 of 2010

The applicant, who is the original Appellant has preferred this review petition contending that while allowing the Appellant to raise a challenge to the Government Orders dated 20.4.2010 and 21.4.2010 before the learned Single Judge, the directions issued by this Court captioned as (i) runs counter to the aforesaid relief granted to the Appellant inasmuch as the learned Single Judge may not be able to proceed as the Appellant has been prevented from raising any challenge to the findings recorded by the learned Single Judge.

For this Sri Khare, relies on the recital contained in the judgment of the learned Single Judge placing reliance on another judgment of this Court in the case of Vivek Kumar Rai v. State of U.P. and Ors., decided on 26.4.2010 reported in 2010 ADJ 438, where the aforesaid Government Orders have been upheld. Sri Khare, therefore, submits that the aforesaid aspect appears to have escaped the notice of this Court and which does not find incorporated in the final judgment under review.

Sri Khare further points out that against the said judgment in the case of Vivek Kumar Rai (supra) Special Appeal No. (496) of 2010 has been filed in which an interim order has been passed staying the operation of the said judgment, which aspect also has a direct bearing on the matter and having not been noticed, the judgment in the present appeal deserves to be recalled.

Sri Khare further contends that the same learned Single Judge in the case of Committee of Management, Krishna Mohani Vidya Mandir v. State of U.P. and Ors.) decided on 5.10.2007 had taken a contrary view as against the judgment in the case of Vivek Kumar Rai (supra) which had been pointed out in the appeal itself, hence the matter deserves a reconsideration as this issue has also gone unnoticed and unresolved.

Sri Khare further invited the attention of the Court to the fact that Special Appeal No. 750 of 2010 has also been filed on behalf of the Respondent-State raising the same issue as in this appeal which is pending before this Court, hence the present appeal ought to be heard simultaneously to resolve the conflict in the decisions of the learned Single Judge as pointed out hereinabove.

Sri Pipersenia, learned Standing Counsel for the State submits that the matter is still pending consideration before the learned Single Judge in terms of the direction in this appeal dated 8.9.2010 and, therefore, it can be clarified that the Single Judge shall allow the Appellant to raise the challenge to the impugned Government Orders as well. He has, however, not disputed the pendency of the two special appeals referred to hereinabove and the conflict as pointed out by Sri Khare in the two judgments of the same learned Single Judge.

Having heard learned Counsel for the parties, we are of the considered opinion that there appears to be an apparent mistake in the disposal of the appeal as it does not proceed to take notice of the conflict in the judgments as referred to by Sri Khare and noted hereinabove. Further, the Appellant is entitled to raise a challenge to the Government Orders and, therefore, the direction that the Appellant would not be entitled to challenge the findings recorded by the learned Single Judge runs counter to the relief granted to the Appellant.

Nonetheless, the issue regarding to the conflict in the judgments of the learned Single Judge on the same issue, in our opinion, deserves to be resolved by a Division Bench more so when two special appeals directly in issue are engaging the attention of this Court.

Accordingly, we are of the opinion that the judgment dated 8.9.2010 deserves to be reviewed. We, therefore, recall the said judgment and restore the appeal to its original number for the reasons stated hereinabove.

This appeal shall now be tagged with Special Appeal No. (496) of 2010 and Special Appeal No. 750 of 2010 and shall be listed before appropriate Bench in the next cause list.

The review petition is allowed.